Tuesday, June 30, 2020

Golden State Killer pleads guilty to 13 murders and 13 abductions--62 other rapes and abductions cannot be prosecuted

Wearing orange jail clothing and a clear protective face shield, Joseph James DeAngelo Jr. admitted guilt Monday to more than a dozen murders and scores of home invasion rapes and other crimes at a court hearing in a Cal State Sacramento ballroom, reported the Los Angeles Times.
As prosecutors read aloud the gruesome details of each crime, victims and their relatives stood in the audience.
Some looked DeAngelo in the eye. Others couldn’t bear to. But all wanted him to know: They were there. And they were not afraid.
“We don’t have anything to be ashamed of, so we can stand up, and he can take a look at us,” said Kris Pedretti, one of the earliest victims, who was 15 when she was raped in 1976. “We’re not afraid of him. I think that’s more powerful than us staying seated and being a Jane Doe. Because, if he looks out, he doesn’t know who is who. He will today.”
In a hoarse voice, DeAngelo pleaded guilty to 13 murders and 13 charges of kidnapping for purposes of robbery — the only crimes with which he is charged. He also admitted to some 62 other crimes of rape and abduction for which the statutes of limitations long ago expired.
Prosecutors agreed not to seek the death penalty — the main request made by DeAngelo’s public defenders. In return for his guilty plea, DeAngelo will be sentenced to prison for the rest of his life.
DeAngelo’s crimes ran from at least 1973 to 1986 and involved attacks on some 106 children, men and women in 11 counties, ranging from Sacramento to Orange. Some 50 women and girls were raped.
Frustrated detectives and the public dubbed the unknown assailant variously as the Visalia Ransacker, the East Area Rapist, the Diamond Knot Killer and the Original Night Stalker.
Detectives did not have a final named suspect until 2018, when they used crime-scene DNA and genealogy services to identify the killer’s cousin and then, finally, DeAngelo, a former police officer.
Sacramento County Assistant Chief Deputy Dist. Atty. Thien Ho called the crimes “simply staggering” in scope.
“His monikers reflect the sweeping geographical impact of his crime,” Ho said during Monday’s hearing. “Each time, he escaped — slipping away silently into the night, leaving communities terrified for years.”
Ho said that DeAngelo, sitting in a Sacramento County Sheriff’s Department interview room hours after his arrest, spoke to himself, saying, “I did all those things. I’ve destroyed all their lives. So now, I’ve got to pay the price.”
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Monday, June 29, 2020

'A Citizen’s Guide to Recording the Police' a primer for amateur videographers

When a Minneapolis police officer knelt on George Floyd’s neck for more than eight minutes while he died, a cellphone video shot by a teenage girl on her way to get a snack made the horror undeniable, according New York Times. “The world needed to see what I was seeing,” said Darnella Frazier. When Buffalo police knocked down a 75-year-old protester and a pool of blood spread under his head, a cellphone video enraged people worldwide. “It just so happens I was in the right place at the right time with exactly the right angle,” said Mike Desmond of public radio station WBFO. Video can change the world — or at least a few million opinions. What about the potentially explosive video that can’t be shot or never gets seen because law enforcement has confiscated cameras or arrested the people using them? media columnist Margaret Sullivan writes in the Washington Post.
This week, New York University’s First Amendment Watch released “A Citizen’s Guide to Recording the Police” a primer for amateur videographers. The guide explains why, under most circumstances, the police can neither seize nor demand to view such recordings — though some may try — and it provides case-law examples. “In this new era, we have armies of citizens out on the streets capable of producing evidence that checks the conduct of public officials,” said Stephen Solomon, the organization’s founding editor. The U.S. Press Freedom Tracker counts well over 400 “aggressions against the press” — including dozens of examples of equipment being damaged — that have marred recent Black Lives Matter protests. About three-fifths of the U.S. population lives in states where federal appeals courts have recognized a First Amendment right to record the police in public, the NYU guide says.
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Sunday, June 28, 2020

Princeton removes Woodrow Wilson's name from public policy school

Princeton University will remove Woodrow Wilson’s name from its public policy school and one of its residential colleges, the university’s president said  — a move that comes four years after it decided to keep the name over the objections of student protests, reported the New York Times.
The university’s board of trustees found that Wilson’s “racist thinking and policies make him an inappropriate namesake for a school or college whose scholars, students and alumni must stand firmly against racism in all its forms,” Princeton’s president, Christopher L. Eisgruber, said in a statement.
“Wilson’s racism was significant and consequential even by the standards of his own time,” Mr. Eisgruber said. Wilson was the university’s president from 1902 to 1910 before becoming the U.S. president in 1913.
Wilson had overseen the resegregation of federal government offices, including the Treasury Department. In a meeting in the Oval Office with the civil rights leader Monroe Trotter, Wilson said, “Segregation is not humiliating, but a benefit, and ought to be so regarded by you gentlemen,” according to a transcript of the meeting.
Monmouth University in New Jersey said last week that it would remove Wilson’s name from its marquee building after administrators, professors and students said that the former president held abhorrent views on race and reinstituted segregation in the federal work force.
The decision contrasted with a vote by Princeton trustees in 2016 to keep Wilson’s name on campus buildings and programs, despite student protests that led to a review of his legacy there.
The university’s trustees said in a statement that it had questioned whether it was appropriate to name a school for “a racist who segregated the nation’s Civil Service after it had been integrated for decades.”
“The question has been made more urgent by the recent killings of Breonna Taylor, Ahmaud Arbery, George Floyd and Rayshard Brooks, which have served as tragic reminders of the ongoing need for all of us to stand against racism and for equality and justice.”
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Saturday, June 27, 2020

GateHouse: Trials of the century revisited

Matthew T. Mangino
GateHouse Media
June 26, 2020
The O.J. Simpson trial generated some renewed interest with the Netflix docudrama “The People v. OJ Simpson,” chronicling the 1998 epic murder trial referred to as the “trial of the century.” In 1994, the football Hall of Famer’s ex-wife Nicole Brown and her friend Ronald Goldman were stabbed to death outside her home in Los Angeles. After more than a year of mesmerizing television coverage, Simpson was acquitted.
The 20th century had more than one “trial of the century.” In fact, about 100 years ago, there were two dramatic murder trials splashed across newspapers nationwide at about the same time - one in Massachusetts, the other in Illinois.
There were two men accused in each case. Their names have withstood the test of time - Sacco and Vanzetti and Leopold and Loeb - the result of each case is worth another look.
In 1920, Italian immigrants Nicola Sacco and Bartolomeo Vanzetti were accused of killing the paymaster and guard at a shoe factory in Braintree, Mass. in a plot to rob the company’s payroll.
In 1924, Nathan Leopold Jr. and Richard Loeb, two wealthy University of Chicago students, rented a car and stocked it with tools to commit the “perfect crime.” They drove to a nearby Chicago park and waited for the perfect victim. They found Bobby Franks.
The two young men lured the 14-year-old Franks into the car. They were subsequently accused of murdering and mutilating Franks for the thrill of the kill.
Although the prosecution of Leopold and Loeb was heralded as the “trial of the century,” the case was not really a trial at all. Renowned criminal defense attorney Clarence Darrow changed the young men’s pleas from not guilty to guilty and focused his efforts on preventing their execution.
On the other hand, Sacco and Vanzetti proclaimed their innocence and went to trial. They were convicted, and that’s when their case got a little weird. After their appeals were unsuccessful, a man serving a life sentence for murder came forward and said that he and others had killed the paymaster and guard.
The Massachusetts Supreme Court refused to act on the new evidence. At that time, only the trial judge had the authority to reopen a case on the ground of newly discovered evidence.
Protesters took to the streets across the United States on behalf of Sacco and Vanzetti. In New York City and Philadelphia, violence erupted.
Darrow chose to focus on saving the lives of Leopold and Loeb, his two young sadistic clients. Darrow asked the judge, “Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way.”
He continued to argue, “Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!”
Darrow’s condemnation of the death penalty concluded, “Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling. ... You would have to do all this if you would hang boys of 18 and 19 years of age who have come into this court and thrown themselves upon your mercy.”
The judge was impressed. He sentenced the admitted killers, Leopold and Loeb, to life in prison.
Sacco and Vanzetti did not fare as well. Although adamant about their innocence, and having another man come forward admitting to the crime, they could not get a new trial. They were executed in 1927.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Friday, June 26, 2020

DOJ Office of Professional Responsibility 'pretextual' investigations okay

Federal prosecutor John Elias testified before Congress that “[w]hile these were nominally antitrust investigations, and used antitrust investigative authorities, they were not bona fide antitrust investigations.” According to Slate, they were instead initiated because Attorney General William Barr “did not like the nature” of the companies’ “underlying business.” Elias’ analysis was largely circumstantial—which, contrary to popular belief, is totally fine—and it was compelling: It included data on the rarity of the type of reviews at issue, references to documents in which staffers had repeatedly indicated that there was no basis for the investigations, and an allegation that during a March 2019 meeting Barr personally ordered division leadership to reject the analysis of career attorneys because “he did not like the nature of [the] underlying business.” (Elias did not attend the meeting in question.)
Elias first reported his concerns to the DOJ’s inspector general, but they were eventually investigated by the DOJ’s Office of Professional Responsibility, which generally handles allegations of ethical misconduct by attorneys while they are on the job. OPR concluded that nothing improper had occurred and summarized its findings in a two-page summary that was publicly disclosed late Wednesday. The memo was signed by the head of the office, who is a career official who was appointed to the position by Barr last month.
Much of OPR’s summary is maddeningly conclusory—simply asserting that Elias was wrong on certain factual questions without explaining how the office came to that view. It is, however, the end of the memo that is truly disturbing. OPR noted that Elias and another whistleblower had accused DOJ of “conducting pretextual investigations” in the cannabis industry “even though such mergers presented no competitive concerns.” The office nevertheless concluded that “even if” the “allegations were true,” these pretextual investigations “would not have violated any relevant laws, regulations, rules, policies, or guidelines.”
This is a stunning finding, and the implications reach far beyond just antitrust enforcement. This is a green light from the DOJ’s internal ethics watchdog to launch investigations that have no legitimate law enforcement objectives. This could include, say, a pre-election investigation into Joe Biden that is intended to inflict political damage on his candidacy, or an investigation into other companies or industries that the president, the attorney general, or other political allies dislike—for political reasons or otherwise. Under OPR’s bizarre logic, as long as the investigation actually occurs (!), then everything is fine. 
Elias apparently received OPR’s report the night before the hearing, and he was understandably taken aback. At the hearing, he testified that OPR’s conclusion was “very concerning to me because it seems so self-evident that if your sole motivation is animosity, that is impermissible. If there is no rule or regulation, there is one missing because that’s obviously wrong.”
In fact, the conduct at issue—if Elias is right about it—is plainly improper under the ethical rules that govern attorneys’ conduct. Under the American Bar Association’s Model Rules of Professional Conduct—the template for the vast majority of state bar rules that govern lawyers’ work—lawyers are not allowed to “make a false statement of material fact or law to a third person” in the course of their work, and they are also not allowed to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (Federal regulations also prohibit federal employees—lawyers and nonlawyers alike—from engaging in “dishonest” conduct, as well as wasting money and abusing their authority.) 
In the case of “pretextual” investigations, the argument for illicit falsehood is pretty straightforward: When the DOJ investigates someone, it is impliedly representing that it is doing so because it believes there may have been unlawful conduct. If that is not true, then the department is engaged in dishonest conduct.
This is not the first time OPR’s work has raised eyebrows. The office has a historically questionable track record doing anything about prosecutorial misconduct. Critics often attribute this to the fact that OPR is not truly independent: The office itself explains that it “reports directly to the Attorney General and the Deputy Attorney General.” By contrast, the DOJ’s inspector general is a presidential appointee, but he is confirmed by the Senate and reports to both the attorney general and Congress.
The problem is that the inspector general has broad investigative jurisdiction over misconduct at DOJ, but it is OPR that generally handles allegations of ethical misconduct by attorneys—a division of labor that has long been criticized. As the New York Times put it in 2018, “Prosecutors, like others in law enforcement, prefer self-policing. And the O.P.R. exists within a culture of exceptionalism and self-preservation that the Justice Department has fought hard to maintain.” (Disclosure: Before I left DOJ, I submitted an internal complaint that may be investigated by OPR, but writing this piece is not likely to endear me to anyone over there.)
As it happens, there is a bill pending in Congress that would eliminate OPR’s role and task the DOJ’s inspector general with handling investigations of attorney misconduct as well. The bill passed unanimously in the House last year, and it was voted out of the Senate Judiciary Committee on Thursday with near-unanimous and unusually broad bipartisan support. It has also drawn rare cross-ideological support from groups as varied as the ACLU and Freedom Works—but DOJ lawyers are fighting hard against it.
Practically speaking, it is hard to say how much the pending bill would really change. The DOJ Inspector General’s Office is far from perfect, and it is not immune from political and public pressure. But OPR’s response to Elias’ complaint—a license to personalize and politicize law enforcement, issued intentionally or not—is among the best pieces of evidence to date that something needs to change. 
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Thursday, June 25, 2020

Federal prosecutors: DOJ has been politicized under AG Barr

Senior law enforcement officials intervened to seek a more lenient prison sentence for President Trump’s friend and ally Roger J. Stone Jr. for political reasons, a former prosecutor on the case is expected to testify before Congress, citing his supervisor’s account of the matter, reported the New York Times.
“What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the president,” the prosecutor, Aaron S.J. Zelinsky, said in a written opening statement submitted on Tuesday to the House Judiciary Committee ahead of Wednesday’s hearing. A copy was obtained by The New York Times.
Mr. Zelinsky is expected to be joined by another current Justice Department employee, John W. Elias, a senior career official in the antitrust division, who will tell the committee that under Attorney General William P. Barr’s leadership, the division was forced for political reasons to pursue unjustified investigations of the fledgling legal marijuana industry and an antipollution pact between California and several automakers.
Democrats have portrayed both men as whistle-blowers who are covered by laws protecting civil servants who share information with Congress. Their emergence now, as Mr. Barr battles questions over the abrupt firing last week of the top federal prosecutor in Manhattan who led investigations into Mr. Trump’s associates, is certain to fuel charges by Democratic and some Republican critics that the attorney general has corruptly bent the department to meet Mr. Trump’s interests and his own.
But at least in the case of Mr. Zelinsky, the secondhand nature of his account of the intervention by Mr. Barr and the acting U.S. attorney in Washington at the time, Timothy Shea, could undercut some of its potential force. And even Democrats concede that with just months left in Mr. Trump’s term, any revelations laid before Congress may have little effect on the fate of Mr. Barr, who has repeatedly and unabashedly defended his actions, or the department.
A department spokeswoman said that the attorney general determined that prosecutors’ recommendation for Mr. Stone’s sentence was “excessive and inconsistent with similar cases” and noted that a judge ultimately sentenced Mr. Stone to about half the time — 40 months — that the prosecutors had originally proposed.
“Mr. Zelinsky’s allegations concerning the U.S. attorney’s motivation are based on his own interpretation of events and hearsay (at best), not firsthand knowledge,” said the spokeswoman, Kerri Kupec, adding that Mr. Zelinsky never spoke with any member of the department’s leadership about the case.
The intervention in the Stone case is expected to be a major focus of the hearing. Mr. Zelinsky and three fellow career prosecutors recommended to a judge in February that Mr. Stone receive seven to nine years in prison, in line with standard guidelines, for perjury and other crimes related to his sabotaging of a congressional inquiry into Russia’s interference in the 2016 election and links to the Trump campaign. Mr. Stone, a longtime confidant of Mr. Trump’s, served as the Trump campaign’s principal intermediary to WikiLeaks during the 2016 campaign at the time it was publishing information stolen by the Russians and damaging to Hillary Clinton.
But as Mr. Trump attacked that sentencing recommendation on Twitter, the department began to work on a new, more lenient recommendation to the judge meting out Mr. Stone’s punishment. The four prosecutors quit the case, and the request was submitted without their signatures.
Ms. Kupec said that Mr. Barr had not discussed the sentencing request with the president and that he had decided to intervene before Mr. Trump tweeted about it.
Mr. Zelinsky will say that a supervisor working on the case told him there were “political reasons” for more senior officials to resist and then override prosecutors’ recommendation to follow the sentencing guidelines and that the supervisor agreed that doing so “was unethical and wrong.”
Mr. Zelinsky did not say in his written statement who specifically told him about what was going on. Jonathan Kravis, another prosecutor who quit the case in protest — and, unlike Mr. Zelinsky, also resigned from the Justice Department — has written in an op-ed in The Washington Post that he “resigned because I was not willing to serve a department that would so easily abdicate its responsibility to dispense impartial justice.”
The intervention came days after Mr. Barr had maneuvered the Senate-confirmed U.S. attorney for the District of Columbia, Jessie K. Liu, out of her role and installed Mr. Shea, who had been a close aide from his own office.
Mr. Zelinsky planned to say he was told that Mr. Shea “was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break” and complied because he was “afraid of the president.” He and other line prosecutors were told that the case was “not the hill worth dying on” and that they could lose their jobs if they did not fall in line, according to the statement.
Mr. Zelinsky, a prosecutor in Baltimore, had been detailed to Washington to continue work on the Stone case that was begun while he worked for the special counsel, Robert S. Mueller III. Mr. Stone, citing the spread of the coronavirus in federal prisons, asked a federal judge Tuesday for a two-month delay before he is forced to begin serving his sentence, which he was due to report for next week. His motion said that the U.S. attorney’s office in Washington had told his lawyers that based on the department’s guidance about handling pandemic-related issues, the government was not opposed.
According to Mr. Elias’s written opening statement, he will accuse the department of inappropriately using its antitrust power to investigate 10 proposed mergers and acquisitions in the marijuana industry because Mr. Barr “did not like the nature of their underlying business.”
The reviews consumed a large amount of the antitrust division’s resources, he said, and document demands imposed a heavy burden on the companies, which were forced to produce hundreds of thousands of pages that the department in some cases did not even look at.
At least one merger fell through and stock prices dropped as a result, he said, even though there was never a justification in competitiveness analysis — like whether the companies trying to merge would have too much market share — for using antitrust powers to essentially harass the firms.
Mr. Elias said that after division staff members expressed concerns, the head of the division, Makan Delrahim, held an all-staff meeting in September and “acknowledged that the investigations were motivated by the fact that the cannabis industry is unpopular ‘on the fifth floor,’ a reference to Attorney General Barr’s offices in the D.O.J. headquarters building.”
Mr. Elias added, “Personal dislike of the industry is not a proper basis upon which to ground an antitrust investigation.”
Mr. Elias’s statement also portrayed an antitrust review of a deal struck by four major automakers with the State of California to voluntarily continue to improve fuel efficiency and reduce emissions on new cars, despite the Trump administration’s rollback of federal standards, as politically motivated rather than grounded in the facts and the law.
Mr. Trump had attacked the deal on Twitter, and the division began its review without going through normal procedures, Mr. Elias said.
Asked for a response, another Justice Department official familiar with the inquiry said that it was opened because of news reporting that raised potential antitrust concerns, not because Mr. Trump was angry.
Mr. Elias also said the department had all the information it needed to close the investigation without action in November, but “the political leadership” then asked staff members to examine California’s announcement that it would buy only cars that met the standards to keep the inquiry going until February.
While the testimony from the two current Justice Department officials about inside deliberation is expected to be the centerpiece of the hearing, the panel will also take testimony from two Republican Justice Department officials from previous administrations — Donald Ayer, who was the deputy attorney general under President George Bush, and Michael Mukasey, who was the attorney general under President George W. Bush.
Mr. Ayer has been an outspoken critic of Mr. Barr, whom he served alongside. Republicans on the committee invited Mr. Mukasey.
House Democrats have made clear they are also interested in learning more about the firing of the top prosecutor in Manhattan, Geoffrey S. Berman. Mr. Berman initially and publicly resisted Mr. Barr’s pressure to step aside, prompting a furor among Democrats and former Justice Department officials who warned that the White House was trying to force him out because he continued to pursue sensitive cases that irked Mr. Trump.
The Judiciary Committee has reached out to Mr. Berman, but he is not expected to appear on Wednesday.
Democrats may subpoena Mr. Barr himself as soon as this week to testify, but there is no guarantee he would appear. The attorney general has resisted such appearances in the past and his department has promulgated legal guidance challenging the validity of some past subpoenas from House Democrats, effectively shielding officials from testimony.

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Wednesday, June 24, 2020

The slowly eroding protections of Miranda v. Arizona

Jay Willis examines the eroding protections of Miranda v. Arizona for The Appeal. Here is an excerpt from Willis' commentary:  A few years later, the newly elected President Richard Nixon set about the task of overhauling what was, to date, the most progressive Supreme Court in history. Within his first three years in office, Nixon managed to replace four of the Warren Court’s justices and installed a reliable conservative, Warren Burger, as chief. The Court has not had a true liberal majority since.
This increasingly reactionary Court quickly embraced the spirit of the Miranda dissents. In 1971, the Court said in Harris v. New York that prosecutors could use illegally obtained confessions to discredit a defendant’s testimony, even if they couldn’t use it as evidence of their guilt. For example, if a murder suspect said before receiving the warning that he pulled the trigger, and later blamed someone else, a prosecutor could tell the jury about a confession that Miranda would otherwise keep out of the courtroom. “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense,” Burger wrote.
Creating this loophole, said Justice William Brennan in dissent, undid “much of the progress made in conforming police methods to the Constitution.” “It is monstrous that courts should aid or abet the law-breaking police officer,” he wrote. 
Almost ten years later, the Court further weakened Miranda in Rhode Island v. Innis when it clarified what counts as an “interrogation.” After Providence police arrested Thomas Innis on suspicion of armed robbery, Innis said he wanted to talk to an attorney. As a trio of officers drove him to the station, two of them began talking—ostensibly just to one another—about the crime scene’s proximity to a school for students with disabilities, musing about how terrible it would be if kids were to find the missing shotgun first. (“God forbid,” one said.) Innis, apparently overcome with anxiety, interrupted their conversation and led them to the gun. 
In court, Innis argued that this charade violated his Miranda rights, since it took place despite his request for a lawyer. The justices agreed that “interrogation” includes actions that police “should know are reasonably likely” to elicit a response. Incredibly, however, they decided that Innis was not “interrogated,” even under this seemingly broad definition. Since the officers weren’t aware that Innis was “peculiarly susceptible” to concerns for the safety of disabled children, the Court said, they couldn’t have known their performance would prompt him to talk.
This is, as Justice Thurgood Marshall argued in dissent, ludicrous. Appeals to “decency and honor” are common interrogation techniques, and stage-whispering about small children dying by shotgun blast was more than “reasonably likely” to get Innis to talk—it was a dramatic ploy designed to accomplish that exact result. As Justice John Paul Stevens dryly noted in a separate dissent, the decision basically gives police a green light to ignore requests for lawyers, “so long as they are careful not to punctuate their statements with question marks.”
Perhaps the most absurd Miranda cases weaponize the warning’s first and most famous guarantee—the right to remain silent—against suspects who try to invoke it. In the 2010 case of Berghuis v. Thompkins, police presented Van Chester Thompkins, a suspect in a murder, with a written summary of his Miranda rights. Thompkins, perhaps wary of signing anything the police asked him to, refused to sign a form to acknowledge that he understood those rights, and offered only occasional, cursory responses during an agonizingly lengthy interrogation that followed. One of the officers who conducted the interview described it as “very, very one-sided,” and “nearly a monologue.”
Finally, after about two hours and 45 minutes of sporadic yeses, nos, and head nods, an officer asked Thompkins if he ever prayed to God for forgiveness for shooting the victim. Thompkins choked up, said “Yes,” and looked away. Based in part on his purported admission, he was tried, convicted, and sentenced to life in prison without the possibility of parole.
In Miranda, Chief Justice Warren had said that police must stop asking questions if a person indicates “in any manner” a desire to remain silent. In Thompkins, the Court flipped that principle on its head. Writing for the five conservatives, Justice Anthony Kennedy explained that silence, by itself, was not enough to invoke the right to remain silent; instead, suspects must assert it “unambiguously.” He also decided that here, police reasonably concluded that Thompkins’s one-word answer—after enduring nearly three hours of one-sided questioning—indicated a desire to waive his rights.
This logic ignores the realities of race, class, and power that were so important to Warren’s reasoning in Miranda. “Ample evidence has accrued that criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence,” Justice Sonia Sotomayor wrote in dissent; they are in an unfamiliar environment, probably handcuffed, afraid of what might happen if they don’t cooperate. Even if police insist they aren’t technically under arrest, they may not feel they can actually leave, especially if they are Black or Latinx. And even if they know about the Fifth Amendment’s guarantees, they may not feel safe trying to bring them up, let alone in a manner police deem sufficiently clear. Thompkins uses justifiable feelings of powerlessness to render people, in fact, powerless. 
The decision, Sotomayor warned, would encourage police to “question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response.” She also pointed out the cruel irony of this standard: To exercise the right to remain silent, the Supreme Court now requires you to speak.
In 2013, the Court extended the Thompkins logic even further, holding in Salinas v. Texas that if a person who isn’t in custody doesn’t answer a police officer’s questions, that silence can be used against him in court later unless he expressly invokes his Miranda rights—rights that police haven’t even read to him yet. As Justice Stephen Breyer put it in a frustrated dissent: “How can an individual who is not a lawyer know that these particular words are legally magic?” 
In response, Justice Samuel Alito argued in his majority opinion that treating silence as an exercise of the right to silence would “needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity.” But by instituting a police-friendly rule instead, the Court made a deliberate choice to privilege the interests of police over the interests of people under their control. When Justice Harlan warned 47 years earlier that Miranda would endanger “society’s” welfare, his definition of society plainly did not include the untold number of people who would end up in jail because they were duped by police.
Underlying each of these cases is a consistent theme: the justices’ faith in police to scrupulously follow rules and refrain from abusing their power. There is little evidence that this trust is well-placed.
In the 1984 New York v. Quarles decision, for example, police found a handcuffed suspect’s empty holster and asked him where the gun was. Although officers hadn’t read Quarles his rights, the Court decided that the gun and his statements about it could be used at trial. Under the circumstances—as in Innis, a missing gun waiting to fall into the wrong hands—the Court explained that complying with Miranda would put police in the “untenable position” of choosing between protecting and serving on the one hand, and safeguarding civil rights on the other.
For police, this creates a readily apparent, perverse incentive: to ask questions before giving Miranda warnings in the name of “public safety.” It allows them to cut constitutional corners based on the supposed exigencies of the moment. 
The Quarles majority acknowledged this concern, but just as quickly waved it away, asserting that, more or less, everything will naturally work itself out. “We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence,” wrote Justice William Rehnquist. This is an astoundingly credulous assessment of the restraint of the police, an institution whose willingness to resort to trickery, deception, and occasionally literal torture made the Miranda warnings necessary in the first place.
In a sometimes-blistering dissent, Justice Marshall excoriated the Quarles majority for subjecting the rule against coerced confessions to a crude cost-benefit analysis. “The majority should not be permitted to elude the [Fifth] Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue,” he wrote.
Not every instance of official deception survives judicial review. In 2004, the Court struck down an especially brazen procedure in which police would first ask questions, then give Miranda warnings, and finally ask suspects to repeat the answers they had just given—this time for the record. Writing for a four-justice plurality, Justice David Souter referred to this strategy as one “adapted to undermine” Miranda, and argued that no reasonable person would have understood they had a choice about whether to talk. 
But the impact of the Court’s war on Miranda is on the millions of unseen interactions that take place in interrogation rooms and squad cars—cases that will never make it to a courtroom, where a judge can belatedly rescue a wronged person from the state’s abuse. By putting itself in the shoes of police instead of the people harmed by police misconduct, the Court tips the balance of power in the direction of law enforcement, punishing people for not knowing what to say once the cuffs are on, unmoved by the consequences of reflexively giving cops the benefit of the doubt. Letting police push the envelope basically ensures that they will sometimes push too far, and get away with it without anyone ever finding out.
Today’s Court looks nothing like the one that decided Miranda: It is dominated by doctrinaire conservatives whose movement’s fondness for law-and-order politics cannot be disentangled from their jurisprudence. Justice Clarence Thomas, for example, is notorious for his indifference to the plight of poor, incarcerated, or otherwise vulnerable people. In 1992, he opined that Louisiana prison guards’ brutal beating of a prisoner was not cruel and unusual punishment because the injuries the man suffered weren’t “serious” enough. In a 1985 job application, Alito boasted that his interest in law stemmed from, in part, his “disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” among others. Now, as a justice, he has the power to help peel back those decisions himself.
The justices’ collective work experience also informs this Court’s anti-defendant bent. Perhaps the surest career path to becoming a judge, other than being an officer in an Ivy League law school’s Federalist Society chapter, is to work as a prosecutor first. This is not a partisan phenomenon: Alito was the U.S. Attorney for the District of New Jersey, while Sotomayor spent several years as an assistant district attorney in New York City. According to a 2019 study conducted by the libertarian Cato Institute, 38.1 percent of surveyed federal judges came to the job with prosecutorial experience. In lower federal courts, former prosecutors outnumber former defense lawyers by a ratio of 4 to 1.
Not all prosecutors are the same, of course; in her opinions, Sotomayor has consistently demonstrated far more empathy for defendants than Alito and his fellow conservatives. But when ex-prosecutors are so well-represented among the ranks of judges, it means that a disproportionate number of people making decisions about defendants’ rights do so from the perspective of someone for whom successful assertions of those rights were once professionally inconvenient. 
By contrast, no sitting justice has meaningful criminal defense experience; Marshall, the last one who did, stepped down in 1991. “You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court,” the Washington Post’s Radley Balko wrote in 2015, in an assessment unaffected by the Court’s recent turnover. Attempts to address this deficiency can make for easy fodder for law-and-order Republicans looking to scuttle a nomination. When federal appeals court judge Jane Kelly appeared on President Obama’s Supreme Court shortlist in 2016, a right-wing activist group quickly spent a quarter-million dollars on ads smearing her for her prior work as a public defender. In the United States, only one side of the criminal legal system gets treated as working in the public interest.
The purpose of Miranda was, as Chief Justice Warren wrote, to protect “human dignity,” ensuring that the existence of fundamental rights did not depend on the legal acumen of the person exercising them. But the Supreme Court has spent decades systematically hollowing out the decision’s promise, even as the federal judiciary’s rightward shift made the legal system less hospitable for criminal defendants. Today, only people who know their Miranda rights—and exactly what to say and do to invoke them—can hope to enjoy the protections they provide. Everyone else is on their own.
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Tuesday, June 23, 2020

George Kelling and James Q. Wilson's 'Broken Window Theory' applied to policing?

George Kelling and James Q. Wilson wrote about their 'broken window theory' in The Atlantic in 1982.  This week, Conor Friedersdorf writes in The Atlantic about applying the theory to police misconduct:

For a generation, American cops have aggressively policed many urban neighborhoods based on the premise that cracking down on minor street disorder would avert spikes in more serious crime. While reviled by some, the so-called broken-windows theory is still defended by many in law enforcement. Maybe it’s time they applied it to themselves.
According to the broken-windows theory, just as a building with one broken window is vulnerable to additional vandalism, a neighborhood with visible signs of minor disorder, such as graffiti and littering, is vulnerable to criminal invasion. “It is more likely that here, rather than in places where people are confident they can regulate public behavior by informal controls, drugs will change hands, prostitutes will solicit, and cars will be stripped,” George Kelling and James Q. Wilson wrote in The Atlantic in 1982. “That the drunks will be robbed by boys who do it as a lark, and the prostitutes’ customers will be robbed by men who do it purposefully and perhaps violently.”
Kelling and Wilson advised police to focus on maintaining order in neighborhoods that hadn’t quite tipped from disorder to violent crime, and emphasized that maintaining order requires more than arresting lawbreakers. They also argued that it requires enforcing the community standards desired by residents of a given neighborhood in a way not easily reconciled with legalistic notions of due process.
 “A strong, commendable desire to see that people are treated fairly makes us worry about allowing the police to rout persons who are undesirable by some vague or parochial standard,” they wrote. Many are thus reluctant to give police the discretion to perform “a function that every neighborhood desperately wants them to perform.” For example, “arresting a single drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense it is. But failing to do anything about a score of drunks or a hundred vagrants may destroy an entire community.”
The case for aggressively enforcing even low-level laws as well as community standards, derived from Kelling and Wilson, influenced policing across the United States, most notably in New York City and Los Angeles under police chief William Bratton, as well as in cities where his deputies were hired as police chiefs. Admirers say the theory contributed to the sharp, sustained declines in violent crime in those cities and beyond, even as critics blame it for unduly onerous policing and mass incarceration.
The attorney Ken White is one of the few people to suggest applying the logic of broken windows to police officers and departments themselves. “If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?” he asked. “Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?”
Significant evidence substantiates the premise that police misconduct is widespread, far beyond the countless examples that are captured on cellphone cameras and posted to YouTube.
Last year, USA Today published a major database of police misconduct. “Obtained from thousands of state agencies, prosecutors, police departments and sheriffs, the records detail at least 200,000 incidents of alleged misconduct, much of it previously unreported,” the newspaper stated. The records included “more than 110,000 internal affairs investigations by hundreds of individual departments and more than 30,000 officers who were decertified by 44 state oversight agencies,” as well as “22,924 investigations of officers using excessive force, 3,145 allegations of rape, child molestation and other sexual misconduct and 2,307 cases of domestic violence.” Independent Department of Justice probes into individual police departments, such as those in Ferguson, Missouri, and Baltimore, revealed agencies that routinely and brutally violated the civil rights of residents.
Similarly strong evidence suggests that police tolerate misconduct in their ranks. In major surveys of police officers, the Pew Research Center and the National Institute of Justice found that 72 percent disagree that cops in their department who consistently do a poor job are held accountable; 52 percent believe that “it is not unusual for a police officer to turn a blind eye to improper conduct by other officers” and that most cops in their department would not report a colleague they caught driving drunk; and 61 percent think that cops “do not always report even serious criminal violations that involve the abuse of authority by fellow officers.”
Even as police officers appear to let one another off the hook, they often crack down on the residents they’re supposed to protect. In 2013 alone, for example, Ferguson’s municipal court “issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations,” the Department of Justice found. “Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees. Under state law, a failure to appear in municipal court on a traffic charge involving a moving violation results in a license suspension.”
No community should be policed so aggressively. But if Ferguson is over-policed, the police themselves seem to be under-policed. And if police believe that aggressive policing of communities works, then on what basis could they object to a dose of their own medicine?
A good place to start would be requiring police officers to police one another on the job. Pew’s survey of police officers found that 84 percent say “officers should be required to intervene when they believe another officer is about to use unnecessary force,” while just 15 percent say they should not be required to intervene. Apparently, a lot of police officers would find it reasonable if their department imposed a duty to intervene. But many cities enforce no such duty. According to the Police Use of Force Project, they include Anchorage, Atlanta, Birmingham, Boston, Buffalo, Charlotte, Chesapeake, Columbus, Dallas, Denver, Detroit, Durham, El Paso, Fort Wayne, Garland, Glendale, Greensboro, Honolulu, Indianapolis, Irving, Jacksonville, Jersey City, Kansas City, Laredo, Lexington, Lincoln, Long Beach, Louisville, Lubbock, Memphis, Mesa, Nashville, North Las Vegas, Omaha, Pittsburgh, Plano, Reno, Rochester, San Diego, San Jose, Scottsdale, St. Louis, St. Petersburg, Tampa, Toledo, Tulsa, Wichita, and Winston-Salem.
A duty to intervene would of course include preventing a colleague from needlessly firing a weapon. But it could be interpreted expansively to include, as well, needless use of a baton or pepper spray, needless shoving, or even a lower-level transgression such as needless yelling or needlessly detaining a motorist for an excessive period of time during a routine traffic stop.
More broadly, cities could crack down on cops who refrain from giving fellow cops traffic tickets, get caught fudging a minor detail in a police report, or park their car illegally. Perhaps such a policy would ultimately reduce more egregious examples of special treatment or lawbreaking on the job.
A true broken-windows approach to tackling police misconduct would also go beyond enforcing even minor laws and policies. It would insist on police adherence to neighborhood norms too.
In the law-review article “The Good Cop: Knowing the Difference Between Lawful or Effective Policing and Rightful Policing—And Why It Matters,” the Yale Law School scholar Tracey L. Meares draws a distinction between whether cops are behaving lawfully and whether they are behaving in a way that accords with community views about how they ought to police to retain the public’s support. The law has little capacity “to tell police how to arrest or stop someone in a way that will tend to support police legitimacy,” she observes. “Rookie officers spend literally hours and hours reading law to learn when they are legally allowed to stop, arrest, and search. They are not correspondingly trained about how to conduct themselves so as to create and maintain their legitimacy in the community.”
Just as the broken-windows theory posits that graffiti can lead to drug dealing, one could argue that cops who transgress against a given community’s norms––say, by lawfully but disrespectfully berating someone on a street corner––are contributing to disorder and its consequences.
Broken windows is not my preferred approach to policing. In theory, police officers who enforce order on the streets could do so without resorting to unduly punitive fines and onerous probation requirements. In theory, broken windows need not manifest as racial inequity or mass incarceration. In practice, that’s exactly what has happened, whether due to flaws in the theory itself or flawed implementations of it. Those injustices cannot be ignored even if one grants that many of the police chiefs inspired by broken windows presided over falling violent-crime rates.
Still, those falling crime rates suggest that going after little problems to deter bigger ones may work. And applying that insight to law enforcement is less problematic than applying it to civilians. Constraints on the people whom society vests with a monopoly on violence are more necessary and justifiable than constraints on civilians indulging nonviolent behavior that some see as disorderly.
Insofar as broken windows already influences policing in a given city, constituting its official response to disorder, fairness demands that it be applied to police themselves. Police unions will resist, of course, not wanting their members to be policed as their members police the public. That’s hardly a reason for politicians to back down.
Kelling and Wilson wrote that “outside observers should not assume that they know how much of the anxiety now endemic in many big-city neighborhoods stems from a fear of ‘real’ crime and how much from a sense that the street is disorderly, a source of distasteful, worrisome encounters.” The protests roiling American cities right now can be understood as conveying a similar message: The anxiety about the police endemic in big cities, especially among black people, is obviously rooted in police shootings and other egregious abuses, but may also stem from lower-level misbehavior that creates the sense that cops don’t respect the neighborhoods or people they’re supposed to protect. Police forces compelled to police themselves aggressively might well find better community relations on the other side, and that suggests that their job will get easier, not harder.
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Monday, June 22, 2020

Bharara: Wrong Justice official got fired

Preet Bharara the former United States Attorney for the Southern District of New York wrote the following op-ed for the New York Times:

President Trump has long made clear that, for him, “rule of law” is a limited-utility slogan. By word and deed, he has demonstrated his belief that the law and its instrumentalities exist to serve him, personally and politically.
He has pressured individuals and institutions to pervert their usual independent government missions to comply with a mandate of pure self-interest to protect the president’s friends and pursue the president’s adversaries. This explains Trump’s ire at his former attorney general, Jeff Sessions, for recusing himself from the Russia investigation; recusal made the protection part of the mandate harder to accomplish.
It also explains the president’s conduct at the heart of impeachment — using the diplomatic and financial levers of government to coerce Ukraine into announcing a damaging investigation of Joe Biden, his chief political rival. The episode is what former Russia adviser Fiona Hill disparagingly referred to in her testimony as “a domestic political errand.”
Trump’s latest domestic political errand involves the office I led for almost eight years — the United States Attorney’s Office for the Southern District of New York in Manhattan, commonly known as S.D.N.Y., a place where politics is supposed to be off limits. The United States Attorney Geoffrey Berman was fired on Saturday in a manner and under circumstances that warrant criticism and scrutiny.
To understand the uproar over the termination in legal circles, some context helps. S.D.N.Y. is famously and proudly independent. It embraces its nickname, the “Sovereign District of New York,” as a badge of honor. Sovereign, in the understanding of those who have served there, does not mean rogue. It signifies respect for law and scorn for political considerations. Republicans and Democrats are equally in the cross hairs.
The career lawyers are hired without knowledge of their politics or ideology. Mary Jo White, the U.S. attorney who hired me to be a prosecutor, opened an investigation of Bill Clinton, the president who appointed her, after he pardoned fugitive financier Marc Rich. Such independent action would seem beyond this president’s comprehension.
That same commitment to independence is why I did not return President Trump’s unusual phone call to me in March 2017, after which he fired me.
The importance of reputational independence isn’t codified in a rule or a statute, but it is rightly embedded in the D.N.A. of any worthy law enforcement institution for a simple reason: That independence gives comfort to the public that decisions about life and liberty will not be influenced by politics or partisan interests, that those decisions will not depend on an individual’s identity, wealth, fame, power or closeness to a president — every judgment rendered without fear or favor, as the oath commands.
It is this independence, and the public’s faith therein, that Attorney General Bill Barr, in cahoots with President Trump, threatened with his dubious, if legal, removal of Mr. Berman.
What prompted the termination? We don’t know and neither Mr. Barr nor President Trump has publicly said. Mr. Berman is a registered Republican, donated to the Trump campaign and was personally interviewed by the president. There has been no suggestion of impropriety or incompetence.
Against that backdrop, the only sin ascribable to S.D.N.Y. under Mr. Berman’s leadership, it seems, is violation of the commandment to protect the president’s friends and pursue his rivals. The president was unhappy with how the case against his former personal lawyer, Michael Cohen, was handled. The president was displeased that his handpicked U.S. attorney, Mr. Berman, removed himself from the case, unable to protect Mr. Trump from being incriminated in open court.
Then there is the reported continuing investigation of the president’s other personal lawyer, Rudolph Giuliani, a former law partner of Mr. Berman. Perhaps that was a bridge too far.
Maybe it had something to do with Turkey. According to John Bolton’s new book, in connection with a case involving the Turkish bank Halkbank in S.D.N.Y. that the Turkish president, Recep Tayyip Erdogan, didn’t like, Mr. Trump told the Turkish leader that the “Southern District prosecutors were not his people.”
I don’t know if any of these matters, individually or in combination, provoked the firing. It may be impossible to know.
But given the president’s track record, the absence of any other articulated reason and the peculiarity of the weekend termination, neither Mr. Trump nor Mr. Barr deserves much benefit of the doubt. Nothing about the weekend termination was regular or in good faith. It smacks of an effort to get rid of someone perceived to be disloyal in favor of someone more controllable. It may be legal, but it does not clothe the attorney general, or the department he leads, in honor.
It began with Mr. Barr declaring that the chairman of the Securities and Exchange Commission, Jay Clayton, would be nominated by the president to be the next head of S.D.N.Y., a somewhat odd choice. Mr. Clayton has never been a prosecutor and never worked in S.D.N.Y. (as has every other U.S. attorney going back two generations). The timing of the announcement, during the traditional news graveyard of Friday night, was further suspect.
More important, Mr. Barr, in a pro forma note of appreciation, thanked Mr. Berman for his service and said he was “stepping down” after two and a half years in the prosecutor’s office. The second part of that statement was an apparent lie. As Mr. Berman said in his own release later the same night, “I have not resigned, and I have no intention of resigning.”
In my experience, government officials don’t lie about the intentions of others when they are acting in good faith. Perhaps the attorney general thought Mr. Berman would be too cowed to contradict a pre-emptive public announcement of resignation. He was wrong. The next day, Mr. Barr sent a letter to Mr. Berman advising him the president had fired him (though Mr. Trump added to confusion and irregularity later in the day by saying, “I was not involved.”).
Forcing out a well-performing U.S. attorney of the same party, without explanation, on the eve of election, in favor of a less qualified candidate who golfs with the president (as Mr. Clayton does), in the midst of investigations known to be irksome to the president, does not reflect a commitment to law enforcement independence.
Within the Department of Justice, hardworking public servants — in the Southern District of New York and elsewhere — are angry, dismayed and demoralized. I’ve spoken to many of them this weekend. They are disheartened by the bad faith of Bill Barr and his determined efforts to undermine prosecutorial independence. On Saturday, finally assured his well-regarded and principled deputy, Audrey Strauss, would take over the reins, Mr. Berman left S.D.N.Y. with his head held high.
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Sunday, June 21, 2020

Trump fires US Attorney in continued purge of 'disloyal' administration officials

President Trump fired Geoffrey S. Berman, the United States attorney for the Southern District of New York,who  put his former personal lawyer in prison and is investigating his current one, heightening criticism that the president was carrying out an extraordinary purge to rid his administration of officials whose independence could be a threat to his re-election campaign, reported the New York Times.
Trump’s dismissal of  Berman, whose office has pursued one case after another that have rankled Trump, led to political blowback and an unexpected result: By the end of the day, Mr. Berman’s handpicked deputy, not the administration’s favored replacement, was chosen to succeed him for now.
The abrupt ouster of Mr. Berman came as Trump sought to reinvigorate his campaign with its first public rally in months and days after new allegations by his former national security adviser that he had engaged in “obstruction of justice as a way of life.”
It was the latest move in a broader purge of administration officials that has intensified in the months since the Republican-led Senate acquitted Trump at an impeachment trial.
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Saturday, June 20, 2020

GateHouse: The president helps hawk Bolton’s book

Matthew T. Mangino
GateHouse Media
June 19, 2020
Former national security advisor John Bolton should drop a thank you note in the mail to President Donald Trump and maybe throw in a sleeve of golf balls.
Authors and publishing houses beg and plead for a book review in a big city paper. The best known authors travel the country visiting book stores, giving lectures and autographing their books to drum up sales.
Thanks to President Trump, and his personal legal team over at the Department of Justice, John Bolton’s name and photograph are on the front page of every newspaper in the country, and around the world. More importantly, right next to Bolton’s name is the title of his soon to be released book, “The Room Where it Happened.”
It all began when Bolton joined the Trump administration. He signed a nondisclosure agreement with the government agreeing to submit any manuscript about his tenure to the White House for prepublication review so the government could ensure that it did not contain classified information.
The Justice Department has acknowledged that Bolton submitted his manuscript for review in the last days of 2019. After a lengthy review the prepublication process was completed and, according to the Washington Post, the “manuscript draft did not contain classified information.”
Get the printing presses rolling - Bolton’s book is ready for release. Well, not so fast, the White House’s senior director for intelligence, Michael Ellis was “concerned that the manuscript still appeared to contain classified information, in part because the same administration that the author served is still in office and that the manuscript described sensitive information about ongoing foreign policy issues.”
The White House was so concerned about the possible breach of national security that the Justice Department filed a lawsuit to stop the release of Bolton’s book. The next day, they filed for a restraining order to enjoin Bolton and his publisher Simon & Schuster from releasing the book.
There is one obstacle in the way of the DOJ’s effort to muzzle Bolton. The United States Constitution, namely the First Amendment.
The Justice Department’s efforts to stop “The Room Where it Happened” from being released is known as a prior restraint. Under well-established First Amendment law there is an almost absolute prohibition against the imposition of prior restraints against the publication of books and news stories related to public officials.
The First Amendment has always stood for the principle that people have a right to publish information free from government censorship.
Relating to national security, there are some narrow exceptions to a prior restraint. The remedy is prepublication review. Bolton got consent to publish and then White House officials jumped in. As the Washington Post suggested, the White House’s concern is, ”(J)ust another way of saying the book includes recent, newsworthy information of public concern that the president wants to conceal.”
According to the New York Times, Bolton’s lawyer Charles J. Cooper called the DOJ’s lawsuits “a transparent attempt to use national security as a pretext to censor Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import.”
The relationship between prior restraint and national security was famously tested in 1971. In what became known as the “Pentagon Papers” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. Lawyers for President Richard Nixon argued that prior restraint was necessary to protect national security.
The Supreme Court disagreed. The Court ruled that the government’s use of the vague word “security” should not be the premise “to abrogate the fundamental law embodied in the First Amendment.” The High Court reasoned since the publication of the Pentagon Papers “would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.”
Setting the bluster aside, the DOJ has little chance of blocking the release of Bolton’s book or quelling the administration’s embarrassment that follows.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Friday, June 19, 2020

AG Barr schedules first federal executions in 17 years

After carrying out three executions since 1988, the federal government will resume executions next month—just in time for the election.  It has been 17 years since the last execution, reported The Appeal. 
U.S. Attorney General William Barr announced on Monday that he had directed the Federal Bureau of Prisons (BOP) to schedule the executions of four prisoners beginning in mid-July through the end of August.
“The decision by the federal government to move forward scheduling executions is appalling, especially at a moment when the country is clamoring for greater accountability and smarter use of resources from our legal system,” Cassandra Stubbs, director of the American Civil Liberties Union Capital Punishment Project, wrote to The Appeal in an email. “Decades of the modern death penalty have taught us again and again that it is biased, arbitrary, and error-prone. States and people around the country are increasingly turning away from it.” 
“As always with this administration,” she continued, “it is a distraction from the real issues the country is begging for them to deal with.”
Barr had attempted to restart executions last summer but a federal trial court blocked the move, ruling that the government’s plan for administering lethal injection was “not authorized” by federal law. 
In April, a Washington, D.C., appellate court reversed that order, clearing the way for the BOP to schedule execution dates. Prisoners’ attorneys have since asked the Supreme Court to review that decision. Since it has not yet stepped in, Barr was able to move forward with his request to set the executions. They were set four weeks in advance to allow time for the justices to consider the case, according to a court filing.
Attorneys for the government and prisoners disagree over the use of pentobarbital, a barbituate that is already used to execute prisoners in some death penalty states but has never been used in federal executions. Previously, the BOP used a three-drug combination and announced its switch to pentobarbital last summer following a review of lethal injection procedures ordered by former President Barack Obama. 
Prisoners’ attorneys argue that the use of pentobarbital violates the Clinton-era Federal Death Penalty Act, which they say mandates that the BOP use the same execution protocol used by the state in which the prisoners are sentenced to death. Methods differ by state. 
Like other death penalty states that use pentobarbital, the BOP has refused to disclose its supplier. Such information would be “catastrophic” to the agency’s ability to execute prisoners, attorneys wrote in a June 12 court filing as part of a federal lawsuit filed by BuzzFeed News.
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Thursday, June 18, 2020

Atlanta police 'protesting' arrest of police officers?

A “higher than usual” number of Atlanta police officers failed to show up for work, hours after the Fulton County District Attorney announced criminal charges for two accused in the death of Rayshard Brooks, reports the Atlanta Journal Constitution. 
“The department is experiencing a higher than usual number of call outs with the incoming shift,” Atlanta police posted on social media. “We have enough resources to maintain operations and remain able to respond to incidents.”
District Attorney Paul Howard announced charges for the two officers. One of the two, Garrett Rolfe, was fired from the department and Devin Brosnan has been placed on administrative duty. 
Neither Atlanta police nor a local union representative confirmed the number of officers involved. 
Vince Champion, Southeast regional director for the International Brotherhood of Police Officers, told the AJC he could not confirm which police zones were affected.
“There are officers walking off," Champion said Wednesday evening. "There are officers saying they are not going to leave the precinct unless to help another officer. Some are walking off and sitting in their personal vehicles." 
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Wednesday, June 17, 2020

Trump signs executive order on police reform

President Donald Trump signed an executive order aimed at guiding police reforms after weeks of nationwide unrest over police killings of unarmed black Americans — though the reforms he outlined fall far short of changes demanded by protesters, reported Politico.
The president revealed in his Rose Garden remarks that he’d just met with the families of nine victims of police or racially motivated killings — though none were in the audience as he laid out three planks of reforms, according to a pool report.
The order would create federal incentives through the Justice Department for local police departments that seek “independent credentialing” to certify that law enforcement is meeting higher standards for the use of force and de-escalation training. Trump specifically noted that those standards would include banning the use of chokeholds — an especially controversial tactic that has led to the high-profile deaths of multiple African-American men — “except if an officer’s life is at risk.”
Trump's order would also incentivize local departments to bring on experts in mental health, addiction and homelessness as “co-responders” to “help officers manage these complex encounters.” And it would encourage better information sharing to track officers with “credible abuses” to prevent them from moving from one department to the next.
The text of the order directs the Justice Department to create and maintain a database to track when officers have been terminated or decertified, have been criminally convicted for on-duty conduct or faced civil judgments for improper use of force. It notes that information-sharing related to use-of-force complaints would not apply in “instances where a law enforcement officer resigns or retires while under active investigation related to the use of force,” and emphasizes that the database would track only episodes in which an officer was “afforded fair process.“
But it does not address the issue of qualified immunity, a legal doctrine that reform advocates say shields police from liability and that the White House has called a nonstarter for any reform measures.
The president’s action swiftly drew criticism from activists for systemic reform for not going far enough and for a lack of teeth. The vast majority of law enforcement decisions are made at the state and local levels, and Trump‘s order aims only to incentivize local departments by stipulating that only departments that adopt his reforms might be eligible for discretionary grants from the Justice Department.
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